Badger v. Barnabee

17 N.H. 120 | Superior Court of New Hampshire | 1845

Woods, J.

The verdict in this case was directed by the court for the defendant, and the question is, whether there is evidence upon which the jury might have found a verdict for the other side.

It appears that Rice made his note for $400, payable in thirty days to the plaintiff, in payment of an antecedent debt, and that Badger received it, and afterward, and for the express purpose of enabling Badger to get the note discounted, and for no other purpose whatever, the defendant put .his name upon the back of the note; that Badger did at first accept the note without the name of Barnabee being upon it.

It has been held in this State, in conformity with the decisions elsewhere, that the name of a party placed upon a note before its delivery binds him as an original promisor.. Martin v. Boyd, 11 N. H. Rep. 385.

In Hodgkins v. Bond, 1 N. H. Rep. 384, it was held that such an indorsement, made after the delivery, did not render the party making it liable to the holder as guarantor, for the reason that no consideration was shown, and for the reason that the undertaking was not in writing, as required by the statute of frauds. But in Massachusetts it is decided that such an indorsement may bind the party as guarantor, if there was a sufficient consideration to support such an undertaking, (Tenny v. Prince, 4 Pick. 385), but not as an original promisor.

By the doctrine of either of those cases, it is quite clear that the defendant is not holdon in this case, at the suit of this plaintiff, as guarantor, for there was no consideration for his undertaking in such a capacity. He placed his name upon the note, after it had become the property of the plaintiff, not for the purpose of making himself liable to him, but for the purpose of making himself liable to such party as might afterwards become the legal holder of the paper, by discounting it for the convenience of the plaintiff.

He was not liable as an original promisor, because the note had been delivered to the plaintiff before the signature was made, and there was no consideration for such an undertaking.

The case of Moies v. Bird, 11 Mass. 436, admits this principle, and was decided upon the ground that the signature was a continuation and completion of the original transaction, by which such security was to have been given; and the jury so found it.

The evidence is therefore perfectly clear and uncontradicted, that the defendant, in placing his name upon the note in question, did not intend to promise to pay the plaintiff anything, nor does the form of the writing import such a promise. The force and construction of the writing upon the back of the note depend upon the time when it was made, in the absence of evidence to show its intent. If made after the delivery of the paper, it is well settled that, without evidence of that purpose, and of a consideration, it does not bind the party making it, to any promise to the holder.

The verdict was properly ordered for the defendant upon the evidence reported, and there must be judgment accordingly.

Judgment on the verdict